Wednesday, August 30, 2006

I was up the morning of August 30th at 3:00 a.m. watching Anderson Cooper's 360 Katrina Report. A wicked thunderstorm kept me awake. AC's blog has this:

Teams from the DHH (LA Agency) set forth to test out hurricane readiness plans for the 72 nursing homes in the New Orleans area. They were checking to see if the nursing homes had things like adequate generators to power life support devices, sufficient transportation contracts to get residents out if the need arose and a place to shelter those residents in the days following a catastrophe.

The results of those surveys were mailed to the operators of the homes in July. The outcome?

Out of 72 nursing homes, only 21 of them complied with the minimum licensing standards for emergency preparedness. 32 nursing homes had multiple gaps in their emergency preparations -- not only did they not have generators, they also didn't have a plan for how or when to evacuate.

My comment: What are the nursing home operators waiting for? A gun to the head?

Flagler County. Courts will be closed starting at noon Wednesday August 30 but plan to reopen the following morning for normal business hours. For updated information, check the Court's Web site at www.circuit7.org. Information is also available at (386) 626-6573 (DeLand) and (386) 257-6031 (Daytona Beach). Updated 8/29/2006, 3:30 p.m. ET

In Raleigh, N.C., a tissue and bone supplier's products posed such a danger to public health that the FDA closed the business down. According to the news, the owner supplied hundreds of tissues for knee repairs, spine surgeries and other medical procedures around the nation, many of them allegedly procured in an unsterile funeral home embalming room. Phillip Joe Guyett is the alleged culprit and his company is Donor Referral Services. Companies have been recalling DRS products from doctors and hospitals since early July.

Is this guy bad news? Guyett was an administrator at the willed body program at Western University in Pomona, Calif., in 1999. He was later charged with selling a cadaver to another school and keeping the $1,100 payment. He pleaded no contest to a felony and embezzlement. He was fined and sentenced in April 2000.

Guyett later showed up in Las Vegas, registering Donor Referral Services with the FDA as a human tissue business. He later moved on to N.C. According to reports there, Guyett also pursued a related business of recycling titanium screws, implants and pins left over after cremation.

The FDA shut him down. It its order, the FDA claims that Guyett altered paperwork on the health history and age of at least five dead donors, eliminating mention of factors like cancer and drug use that might make them ineligible.

At least that is what one watchdog group says. Eleven randomly selected FDA advisory committees suggested approval in 79 percent of votes on applications between 1998 and 2005, according to the study by National Research Center for Women & Families. The committees considered 89 products during that period.

Several Congressmen have ripped the FDA for failing to keep up with drug safety. Other groups have said the FDA has appointed doctors and scientists to advisory committees who have financial or or cozy relationships with companies whose products are directly considered.

Pregnant women who take the most widely used pain relievers early in pregnancy may be at increased risk for specific heart-related birth defects, that according to a Canadian study.

The Canadian study compared 93 births diagnosed with birth defects in 1,056 women who had prescriptions for NSAIDs filled during the first three months of a pregnancy to 2,478 births with birth defects in 35,331 women who did not fill prescriptions for the pain relievers. They looked at records from 1997-2003.

After adjusting for other known risk factors for birth defects, the researchers reported that women who took NSAIDs early in pregnancy were roughly twice as likely to have a baby diagnosed with any birth defect in the first year as women who did not have NSAID prescriptions filled, and they were three times as likely to give birth to babies with a structural defect such as an abnormal opening, or hole, in the dividing wall separating the right and left sides of the heart.

The most commonly prescribed NSAIDs were naproxen, sold by prescription as Naprosyn and over the counter in the U.S. as Aleve; ibuprofen, sold as prescription Motrin or generic ibuprofen and over the counter as Advil and Motrin; and the prescription Cox-2 inhibitor pain relievers Vioxx and Celebrex.

Monday, August 28, 2006

Wyeth researchers in 1983 told of studies focusing on the breast-cancer risks associated with what became the company's Prempro hormone-replacement drug may come back to haunt the drugmaker says a Memo introduced at a trail on the drug.

The FDA's requested Prempro review ``would be very costly and would take many years,'' researchers said in the memo. ``In fact, the result of the studies might prove to be embarrassing.''

The conclusion reads: Popowski and the Commerce Group appeal the dismissal by the district court of their claim under § 1132(a)(3) seeking reimbursement out of the third-party recovery made by Parrott for benefits paid by the United Distributors Plan on her behalf. Because, as required by Sereboff, Popowski and the Commerce Group seek relief from an identifiable fund and have specified the portion of that fund over which they assert a claim, we find that they have stated a claim for appropriate equitable relief under this provision of ERISA. Accordingly, we REVERSE the dismissal, VACATE the denial of the motions for TRO, preliminary injunction, and the addition of Parrott as party-defendant, and REMAND case number 05-10235 for proceedings consistent with this opinion.

BCBS appeals the dismissal by the district court of its claim under § 1132(a)(3) seeking reimbursement for medical expenses paid on behalf of the Carillos by the Mohawk Plan. Because the Mohawk Plan makes the beneficiaries' recovery from a third party only a trigger for reimbursement and sets no limit upon the reimbursement thereby initiated, we find that BCBS has failed to state a claim for appropriate equitable relief according to the requirements outlined in Sereboff. Accordingly we AFFIRM as to case number 05-1334.

The conclusion reads: Popowski and the Commerce Group appeal the dismissal by the district court of their claim under § 1132(a)(3) seeking reimbursement out of the third-party recovery made by Parrott for benefits paid by the United Distributors Plan on her behalf. Because, as required by Sereboff, Popowski and the Commerce Group seek relief from an identifiable fund and have specified the portion of that fund over which they assert a claim, we find that they have stated a claim for appropriate equitable relief under this provision of ERISA. Accordingly, we REVERSE the dismissal, VACATE the denial of the motions for TRO, preliminary injunction, and the addition of Parrott as party-defendant, and REMAND case number 05-10235 for proceedings consistent with this opinion.

BCBS appeals the dismissal by the district court of its claim under § 1132(a)(3) seeking reimbursement for medical expenses paid on behalf of the Carillos by the Mohawk Plan. Because the Mohawk Plan makes the beneficiaries' recovery from a third party only a trigger for reimbursement and sets no limit upon the reimbursement thereby initiated, we find that BCBS has failed to state a claim for appropriate equitable relief according to the requirements outlined in Sereboff. Accordingly we AFFIRM as to case number 05-1334.

Dave Swanner mentioned on his blog last week that a Trial Attorney Collaborative Blog debuts soon.

He wrote: "We have a number of friends that are extraordinary trial lawyers and would benefit tremendously from a blog, but they didn’t have the time to write their own blog" ... so the "idea was to do a group blog with a number of the top trial lawyers, where they would only have to write about a post a week. And if their trial or speaking schedule kept them from writing for a month or so, they could take the time off because there would be others keeping the blog going."

The blog focus - trial techniques. I can tell you that the content provided so far is quite good. Scary good. The names are nationally known ones, and it to me is of the highest quality.

I've written about New Orleans quite a bit on this blog. It's one of my favorite places. As the one year anniversary nears certainly there will be much written. There is a new video that is worth a look.

Go here to view it. A 15 year old blogger has produced it, and it's powerful. The four minute video will likely make you angry again.

Wednesday, August 23, 2006

I returned from an early morning meeting here in Metro Atlanta. For some folks it is hard to appreciate the jams drivers face each day here (unless you live in DC, NY or L.A.). Today's traffic jam headed northbound away from the city was by my estimate eighteen mileslong.

My trip from the meeting place this morning to my office is usually twenty five minutes. Today? An hour and a half. Trip mileage? Twenty miles.

The traffic has become so bad that for many of my frequent trips to Birmingham, Alabama for business, what is usually a 2.5 hour trip one way sometimes turns becomes a nearly five hour odyssey if I try to leave Atlanta during early rush hour (after 3:30 p.m.).

I'll post pics shortly of a typical, dry, otherwise carefree morning today that turned into a quagmire because of one wreck on a highway where the flow is going the opposite way of rush hour traffic.

You can imagine what this does to scheduling even mundane matters. My office tries to avoid setting hearing or depositions that begin before 10 A.M. or start after 2 P.M. because of traffic. It is not unusual for me to leave 90 minutes before a 9 A.M. hearing - for a travel distance of less than 30 miles. My worst trip time was more than two and a half hours on a 40 mile drive (one way) after a late afternoon deposition. Rain, wrecks, a winter day where the sun went down at 50 PM or so.

The CDC based in Atlanta has declared that a recent outbreak of severe eye infections was associated with the use of ReNu with MoistureLoc contact lens solution, but a chemical reaction that can occur with the solution appears to be the cause.

Officials also believe the fungal contamination occurred in users' homes, not in the manufacturing or storage process.

The CDC study released 8/23/06 shows that 164 confirmed cases of the corneal infection Fusarium keratitis were reported in 33 states and a U.S. territory from June 1, 2005 to June 30, 2006. Ninety-four percent of those cases were among soft contact lens wearers.

"We think that there's something about the chemical make-up of the solution that allows the fungus to grow and cause infection," said study senior author Dr. Benjamin J. Park, medical officer with the U.S. Centers for Disease Control and Prevention. "We don't know the exact mechanism, but it's important that users of solution don't use Moistureloc." See here for quote reference.

From the ajc.com, and other stations airing this news here in my hometown today:

Drivers who cause a wreck while talknig on a cellphone will face a fine of up to $500 under a law that took effect Tuesday in DeKalb County (Just east of Atlanta).

The law, likely the first of its kind in Georgia, sanctions drivers whose "improper" usage of a mobile phone was a "contributing factor" in a collision causing death, injury or damage.

He said he also talked to a county traffic court judge who told him cellphones were a factor in as many as 700 collisions in a year.

"It's becoming more and more of a problem," a county official has said. The law does not target drivers who use headsets or hands-free devices.

The County went the route of imposing a fine as opposed to an outright ban because it would be inappropriate to expect drivers to watch for the county line sign while carrying on a conversation. He said if there were to be a ban, it should be statewide. A state ban has been proposed in the Georgia Legislature but has never passed.

To me the most compelling statement - by a politician no less was this: He said he also talked to a county traffic court judge who told him cellphones were a factor in as many as 700 collisions in a year.

"It's becoming more and more of a problem," Jones said. He said the law does not target drivers who use headsets or hands-free devices.

A county rep accurately stated that there should not be a backlash, "because everybody has a cellphone, and they know one time or another they could have caused an accident."

Tuesday, August 22, 2006

This update supplements information previously provided by the Company. Commencing with the Company's report on Form 10-Q for the first quarter of 2006, the Company generally intends to provide updates on VIOXX litigation through its periodic filings with the Securities and Exchange Commission (SEC). Information regarding scheduled product liability trials in 2006 can be found at www.merck.com.

As previously disclosed, individual and putative class actions have been filed against the Company in state and federal courts alleging personal injury and/or economic loss with respect to the purchase or use of VIOXX. A number of these actions are coordinated in separate proceedings in a multidistrict litigation in the U.S. District Court for the Eastern District of Louisiana (the "MDL"), New Jersey state court, California state court, Texas state court and Philadelphia, Pennsylvania. As of June 30, the Company has been served or is aware that it has been named as a defendant in approximately 14,200 lawsuits, which include approximately 27,100 plaintiff groups alleging personal injuries resulting from the use of VIOXX, and in approximately 190 putative class actions alleging personal injuries and/or economic loss (all of the actions discussed in this paragraph are collectively referred to as the "VIOXX Product Liability Lawsuits").

Of these lawsuits, approximately 5,700 lawsuits representing approximately 16,100 plaintiff groups are or are slated to be in the federal MDL and approximately 7,100 lawsuits representing approximately 7,100 plaintiff groups are included in a coordinated proceeding in New Jersey Superior Court. In addition, as of June 30, approximately 5,800 claimants had entered into Tolling Agreements with the Company, which halt the running of applicable statutes of limitations for those claimants who seek to toll claims alleging injuries resulting from a thrombotic cardiovascular event that results in a myocardial infarction or ischemic stroke.

Friday, August 18, 2006

Andy Childers is one of the nation's leading, young, articulate litigators. If you don't know him, you should. His firm's website can be found here.

I asked Andy to give his opinion on the effects of the recent Vioxx verdict in Louisiana and the decision in the Humeston case in New Jersey. He wrote:

Although both results were very important, I believe the New Jersey Order was even more significant than the New Orleans verdict.

Judge Higbee's Order shows Merck's continuing pattern of deception and lies, not just in the labeling and marketing of Vioxx, but all the way through the trial of the Humeston case. Merck has continued, in my opinion, to lie about what it knew about the dangers of Vioxx and when it knew of such dangers.

What is notable is that on August 17th Judge Higbee also ordered Merck's general counsel, Joanne Lahner (who is in charge of the Vioxx litigation), to appear before her within 20 days for a hearing concerning her role as it relates to Vioxx.

The further we dig into the Vioxx debacle, the more Merck's true colorscome out.

Thursday, August 17, 2006

A New Jersey state judge has vacated a jury verdict for Merck & Co. Inc. and ordered a new trial for a postal worker who blamed his heart attack on his two-month use of Vioxx, according to plaintiff's firm Seeger Weiss. Humeston v. Merck & Co. Inc.

Counsel for plaintiff Frederick 'Mike' Humeston said in a statement that Atlantic County Superior Court Judge Carol E. Higbee's ruling nullifies the verdict for all purposes and will allow Humeston a new day in court. The retrial is tentatively planned for January, according to plaintiff's attorney Christopher Seeger.

In an Aug. 17 bench ruling, Judge Higbee said that evidence uncovered since the Nov. 3, 2005, verdict showed that Merck failed to report material cardiovascular safety data connecting increased risk of heart attack with use of Vioxx for less than 18 months, according to Seeger Weiss.

Much like announcers do on ESPN's Sportscenter, if you're keeping score at home, it's 5-4 Merck Wins v. Losses.

To me the stakes in this case were much higher. Had the Plaintiff lost this case, then it is a string of losses, with two straight in the MDL.

Defending the case was Phil Beck, who had already won one trial in the MDL against a mismatched Plaintiff's team. The Chicago Tribune wrote, before the trial began:

"If Merck & Co. is ever going to have to pay tens of billions of dollars in damages over its painkiller Vioxx, plaintiffs' attorneys are first going to have to get past Phil Beck."

Beck was a part of the legal team that helped President Bush win the contested 2000 election. He achived victory for Bayer in 2003 in the first trial involving Baycol. Many analysts say that win limited the size of settlements that followed.

"If you had to pick a star out of the roster of lawyers down there in Florida ... it might have been Phil Beck," NBC'sBrian Williams said of Beck's cross-examinations of key witnesses in a Florida judge's decision stopping a recount of more than 12,000 disputed votes. (For sources, go to yahoo.com or the tribune.com site)

Wednesday, August 16, 2006

Nationwide Mutual Insurance properly denied the vast majority of a claim by a Mississippi couple whose home was destroyed by Hurricane Katrina. The lawsuit was closely watched by the insurance industry and carriers have refused to pay out billions of dollars for flood damage from Hurricane Katrina.

The Judge wrote that the insurer had met the burden of proof that most of the damage to the property in question was caused by "water and waterborne materials" and that as such were excluded.

Medical devices known as Kirschner wires and Steinmann pins made by a Teleflex Inc. plant failed specifications, according to an FDA letter to Teleflex.

The warning letter issued in July can be found on the FDA's Web site. It cited an inspection at the company's Research Triangle Park, N.C., facility. The letter said that, after finding out there were problems with the Kirschner wire and Steinmann pins, Teleflex did not re-evaluate and reinspect the lots that had been released for distribution to determine the extent and seriousness of the problem.

Teleflex was in the news back in October of 2005 when the then-FDA head Lester Crawford sold shares in the company. "Financial disclosure issues" may have played some role in his exit from the FDA, according to news reports.

Tuesday, August 15, 2006

FDA personnel and Big Pharma watchdogs are worrying about straight to consumer pitches that may offer drugs like a free Viagra prescription or a no-cost trial of sleeping pills.

Coupons for prescription drugs may increase the desire to take a drug that may or may not be the most suitable drug for a person's ailments. Community Catalyst is a group that is joining with others groups in seeking an FDA ban on the practice of coupons for free drugs.

The FDA meekly joined the fraym, then apparently under immense pressure from Big Pharma, retracted a stated position. In 2006, the FDA said that drugs promoted with coupons or free trial offers may be seen as more widely indicated, more appropriate and/or less risky than they may be. That notice was later pulled back. The FDA position made it one day before it was pulled back. You can read the "Notice" here. On one blog, a poster noted:

The giveaways are not just for adults. Galderma Pharma was roundly hammered for giving free music downloads to people who bought prescriptions for acne drug Differin. That practice has since been stopped.

One University Professor has said the coupon trend was "the same symptom we have seen in the drug industry for years - the ascendancy of marketing over science" as companies fight for market share. Go here.

Monday, August 14, 2006

I am always surprised to read the arcane language used by attorneys in everything from demand letter to pleadings to client letters.

Is it time to revisit your forms? A few items stricken forever from letters and pleadings in my office:

Client updates: I typically start a letter to the client with a simple sentence: "I hope this letter finds you and your family doing well." From a lawyer perspective, I cannot tell you how many times a client will call and mention how nice that simple sentence was.

What I do not use: I cringe when I see a letter to a client that closes with "If you have any questions, please do not hesitate to contact the undersigned at your earliest convenience." Are trial lawyers paid by the word? Ours close with, "Please call me if you have any questions."

Witnesses at depositions, hearings or trials: I picked up a way to start the questioning from a great trial lawyer, Lefferts Mabie. He died several years ago. His simple question to a witness was: "Please tell us who you are and where you live." Not the typical, "Please state your name for the record." One judge before whom I appear frequently now uses it as well.

Pleadings: In Georgia I was mortified to read this when I first relocated: "COMES NOW the Plaintiff, hereinafter referred to as "XXX" and for his Complaint to this Court brings this action against "XXX" and prays ... ." It's a little bit shorter now: "Plaintiff "XXX" sues Defendant "XXX" and alleges.. ." I have yet to see a Motion to Dismiss when I use that language.

Lawyers need to "get off the high horse" as my grandfather used to say and speak plain english. Are your forms or letters too formal?

Thursday, August 10, 2006

In my RSS feeds I had (until this past week) more than 125 feeds. I just cleaned house when it comes to RSS feeds from law student bloggers. I do appreciate that law student bloggers let off steam (I think) from blogging, but are any worth reading - ever? 25 of them gone in one fell swoop.

There is one theme that is common - how much their lives suck, how bad job prospects suck, how everything sucks. Woe is me, they seem to cry. Not all, but many. Others just go the path of least resistance - cursing. One student blogger likes the word "f*cking" quite a bit. He also noted that on his to do list was ... sexual self gratification. Another "student" tells me "Why I Hated Law School."

I guess maybe I don't understand law schools, how tough it is, how hard the bar exams are, how tough it is to find a job. Wait! I did go to law school, passed bar exam(s) and applied for jobs.

If you are a law student with a blog or know of one who is writing anything worth reading, email me at mzlawoffices@yahoo..com. Do you exist?

Wednesday, August 09, 2006

A recent studay suggests a link between Selective Serotonin Reuptake Inhibitors (SSRI drugs) like Zoloft and Paxil and suicides.

Mark Olfson, M.D. at the College of Physicians and Surgeons at Columbia University Medical Center used a Medicaid database of patients hospitalized with severe depression.

With more than 5,000 in the study found in the Archives of General Psychiatry, they separated children aged 6 to 18, from a group of adults and those who attempted suicide or succeeded. They found five times as many patients who met certain pre-set criteria but had not committed suicide or attempted it.

The study showed that young people who attempted suicide were 1.5 times more likely to have been on an antidepressant at the time of the attempt. Even though only eight children actually took their own lives, they found that they were 15 times more likely to have been on antidepressants. Children who took their own lives were more likely to have been taking a selective serotonin reuptake inhibitor, SSRIs, like Zoloft and Paxil.

Friday, August 04, 2006

Stewart Grossberg's case in California was a quick zero verdict for Merck yesterday. It was seen as important for the company because it came in a courtroom located in Los Angeles' Central Civil West Courthouse, a courthouse known as "The Bank" for its record of granting huge awards in product liability cases.

Several considered Grossberg's case as weak because he took the drug on an as needed basis, not every day. Several attorneys viewed the verdict as only a qualifiedvictory for Merck.

I'll comment later when I have had a chance to talk to a few more colleagues.

I pulled the pic at the top of this post from Brian's Flickr account. Sort of sums of what you can get at most mom and pop stores along the coast of Louisiana - and Alabama and West Florida for that matter. Whenver I need live minnows (or crickets) and a six pack, this is the place to go.

I love New Orleans and its environs more than any other city, and hopefully you can tell that from reading my posts here (Just search the blog using "New Orleans"). I and others pray that it comes back, as well as cities like Slidell.

Wednesday, August 02, 2006

Stewart Grossberg's case goes to the jury today 8/2/06. Grossberg is 71. He started taking Vioxx in 1999 to manage joint pain in his knees, hands and elsewhere caused by osteoarthritis. He claims that a 2001 heart attack was caused by Vioxx.

Tom Girardi is lead Plaintiff's lawyer on the case. Expect a decision possibly as soon as Friday afternoon.

Tuesday, August 01, 2006

A retired FBI agent is up next this week in New Orleans, LA before Judge Fallon. The Plaintiff - Jerry Barnett - took the drug for for more than eighteen months. His claim of injury is a heart attack, and his counsel is Mark Robinson.

The Plaintiff began taking pain relievers after an auto accident in 1978 and switched to Vioxx in January 2000. Barnett took Vioxx for 55 months, from January 2000 to September 2004, when Vioxx was pulled from the market and had a heart attack after 31 months of use.

In a brochure for patients, the drug maker failed to say which specific conditions Alimta treats, according to the FDA's letter of July 27, 2006 and released on its Web site.

The brochure informs patients that "Alimta is a chemotherapy drug used to treat certain types of cancer." d.

Alimta is approved to treat non-small cell lung cancer or in some cases mesothelioma. According to the warning letter, the brochure also fails to tell patients that there were no trials showing a clinical benefit such as improved survival or relief of symptoms in patients with non-small cell lung cancer.